FOURTH DIVISION

DILLARD, C. J.,

DOYLE, P. J., and MERCIER, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten days

of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

October 18, 2018

In the Court of Appeals of Georgia

A18A0910. BORGERS v. BORGERS.

MERCIER, Judge.

We granted Stefanie Borgers’s application for discretionary appeal in order to

determine whether the trial court erred by (1) modifying custody in a post-divorce

contempt proceeding when no motion to modify custody was made, and (2) ordering

her to cease home-schooling one of her children and to enroll the child in school. For

the reasons that follow, we reverse.

The record shows that Stefanie Borgers (the “mother”) and Brian Borgers (the

“father”) divorced in 2013.

1 The final divorce decree (the “divorce decree”) awarded

1 The spelling of the first names of the parties varies in the record. However,

both the Final Order granting their divorce and the order at issue in this case refer to

the parties as “Stefanie” and “Brian,” so we have used these spellings in our opinion.
the parties joint legal custody of their three minor children, but awarded the mother

primary physical custody and final decision-making authority regarding the children.

In the divorce decree, the court “expressed concern as to whether home-schooling is

in the best interests of these children[,]” but did not prohibit the mother from

continuing to home-school the children.

On February 10, 2016, the father filed a “Petition for Contempt and

Modification of Custody” (the “first contempt petition”), which requested that the trial

court hold the mother in contempt for failing to abide by the court-ordered visitation

schedule and parenting plan; compel her to refrain from alienating the children from the

father and to comply with visitation requirements; modify the father’s child support

obligation to reflect his then-current earnings; and award attorney fees to the father. In

the first contempt petition, the father noted: “This Honorable Court, in its [divorce

decree], expressed concern as to whether home-schooling the minor children was in

their best interest; despite the Court’s concern, the Mother continues to home-school

the minor children.” However, despite its title, the first contempt petition did not

request a change in child custody.

On April 27, 2016, the trial court held a temporary hearing “regarding child

support only.” This hearing apparently was not transcribed. The trial court thereafter

2
entered a temporary order modifying the father’s child support obligation and stating

“[a]ll other issues not herein amended shall remain in full force and effect.”

Although the court’s temporary order only addressed child support and

specifically noted that the temporary hearing addressed “child support only,” on

September 2, 2016, the father filed a Petition For Contempt of the Court’s Temporary

Order (the “second contempt petition”), contending that the mother interfered with

court-ordered counseling and was in contempt of the parenting plan. In the second

contempt petition, the father sought, among other things, to have the mother held in

contempt and incarcerated. The second contempt petition did not mention homeschooling or request a modification of custody.

Following a hearing that apparently was not transcribed, the trial court issued

on June 1, 2017 a “Final Order Regarding Contempt Order and Modification”

resolving both contempt petitions. The court found the mother in contempt of the

court-ordered parenting plan and sentenced her to serve ten days in jail, which

sentence was suspended at the father’s request, subject to other conditions set forth

in the order. The court also set forth a visitation schedule, awarded attorney fees to the

father, and set the case for an August 2017 status hearing. The orderspecifically stated

3
that “[a]ll other issues not herein amended shall remain the same as previously

adjudicated[.]” With regard to home-schooling, the court stated,

The Court finds it to be a shame that the Defendant Mother has not

taught her children to be independent; the [c]ourt makes the findings

based on the expert witness testifying that the children have issues in

small classes as they have been previously home schooled by the

Mother. The [c]ourt has informed the Mother as it was not requested she

will not change custody[.]

On August 16, 2017, the trial court held a status hearing that apparently was not

transcribed. Following the hearing, the court entered a “Compliance Order” on August

29, 2017, finding that “all parties ha[d] complied with the [c]ourt’s previous final

order.” However, the Compliance Order also stated the following:

The [c]ourt also heard argument concerning the parties’ youngest child’s

schooling. The [mother], through her counsel, presented to the [c]ourt

that since the previous hearing the parties’ youngest child was taken out

of Montessori School and at the time of the hearing was being home

schooled. The [c]ourt, based on the previous recommendations provided

by Dr. Patricia Wright at the May[] 2017 hearing and the [c]ourt’s own

beliefs as to the child’s best interest hereby orders the [mother] to

immediately enroll the child in school and ensure the child is not “home

schooled” for the purposes of the child’s education. The [c]ourt finds

that the child’s enrollment and attendance at the Montessori School

should be convenient for the child and Mother as the Mother is actively

4
employed with the Montessori School and the child would benefit from

the wonderful educational opportunity at the Montessori School.

1. The mother argues on appeal that because the final divorce decree made her

the primary physical custodian and final decision-maker regarding the children, which

included the authority to make decisions regarding the children’s education, the trial

court’s order that she enroll the parties’ youngest child in school, rather than allowing

her to home-school the child, constitutes an improper modification of custody in this

contempt action.

“In a contempt proceeding, as here, the trial court has authority to interpret the

meaning of a divorce decree. In such action, the trial court does not have authority to

modify a final judgment and divorce decree.” McCall v. McCall, 246 Ga. App. 770,

772 (1) (542 SE2d 168) (2000) (footnote omitted). Thus, we first must determine

whether the order at issue here modified the parties’ divorce decree. If so, we must

determine whether the court erred in modifying the divorce decree.

(a) While there do not appear to be any cases specifically holding that an order

directing a child’s final decision-maker to educate the child in a particular manner

constitutes a modification of the final divorce decree, it is clear that “[w]here a child

goes to school is a parental decision,” Daniel v. Daniel, 250 Ga. App. 482, 485 (2)

5
(552 SE2d 479) (2001), and this Court has previously issued a few rulings tangentially

relating to this issue. For example, in McCall, 246 Ga. App. at 771, the mother was

granted sole custody of the children, and the father filed a motion for contempt,

arguing, in part, that the mother had failed and refused to facilitate his receipt of

information about the children’s school work. The trial court granted the father, among

other things, direct access to schools, health care providers, tutors, or therapists to

obtain any information, reports, or records that he desired. Id. at 771-772. We agreed

with the mother that by extending to the father rightsreserved to her in the final divorce

decree as the sole legal custodian of the children, the trial court “transformed the final

judgment” and effectively granted a change in custody equivalent to “joint legal

custody,” which it was not authorized to do in a contempt proceeding. Id. at 773-774

(2).

In addition, this Court has not questioned whether actions appealed regarding

a change in a child’s education were properly brought as custody actions. For

instance, in Daniel, 250 Ga. App. at 483, the parties were awarded joint legal custody

of their minor child and the agreement contained no “tie breaking” provision.

Following the divorce, the Daniels began to disagree regarding their child’s education:

the mother wanted to home-school the child, and the father wanted the child to attend

6
public school. Id. The mother filed a petition for a change of custody, requesting that

she be designated the primary decision-maker with regard to the child’s education,

religious training, and health care issues, and the father counterclaimed, requesting that

the trial court make him primary decision-maker regarding his child’s education. Id.

This Court noted, “the modification of custody requested by the Daniels in this case

requires a finding of a material change of condition[,]” Id. at 483 (2), thus implying that

a change regarding which parent has primary decision-making authority over education

is a change in custody.

Similarly, in Fox v. Korucu, 315 Ga. App. 851, 854-855 (729 SE2d 16) (2012),

an appeal of a ruling in a custody modification action, this Court held that a

disagreement regarding a child’s education may constitute a material change in

circumstances sufficient to justify a custody modification if there is evidence of a

material change in circumstances that adversely affects the child. In Odum v. Russell,

342 Ga. App. 390 (802 SE2d 829) (2017), another appeal of an order in a custody

modification action, the trial court modified several parenting provisions of the original

divorce decree, including changing the final decision-making authority about education

from the father to the mother. We held that “the trial court was not authorized to

modify the original custody order by altering parental custody arrangements, which

7
included arrangements over which parent would have final authority over certain

decisions relating to the child” because the trial court had expressly found that there

had been no material change in circumstances. Id. at 393 (1). Likewise, in Terry v.

Garibaldi, 274 Ga. App. 405 (618 SE2d 6) (2005), the mother sought a change of

custody based in part on the parents’ inability to make a decision regarding whether

their child should attend public or private school. Id. at 405-406. The trial court found

that the mother showed a material change in condition based on the parents’ differing

views regarding the appropriate educational setting, but we reversed after finding that

an educational dispute typically is not a material change in condition that will justify a

change of custody, and, further, the court’s order did not indicate that a change in

condition had an adverse effect on the child. Id. at 408-409 (2).

In the case before us, the divorce decree awarded the mother primary physical

custody and final decision-making authority regarding the children, and the mother

decided to home-school the youngest child. However, the father and the trial court

disagreed with this decision, and in the father’s contempt action, the trial court ordered

the mother to enroll the child in private school rather than allowing the mother to

continue to home-school the child. The educational issue in this case, as in the cases

above, is a custody issue. Whether the trial court effectively granted the father the right

8
to make decisions regarding the child’s education or took it upon itself to make this

particular decision, the result is the same: the final decision-maker regarding the

children lost her right to make the final decision about the youngest child’s education.

Thus, the order appealed from effectively modified the divorce decree’s custody

provision.

(b) Finding that the trial court’s order modified custody, we must next

determine whether the trial court was authorized to modify custody in this contempt

action. The argument asserted presents a question of law, and we owe no deference

to the trial court’s ruling. Hammonds v. Parks, 319 Ga. App. 792, 794 (3) (735 SE2d

801) (2012).

We agree with the mother that the court exceeded its authority by entering an

order modifying the respective legal rights of the parents in a contempt proceeding. To

obtain a change of custody, the non-custodial parent must file a new action for that

specific purpose. See OCGA § 19-9-23 (a); McCall, supra at 772 (1) (a contempt

proceeding and a change of custody proceeding must be instituted as two separate

actions).

In this case, the record is devoid of any evidence showing that the father filed

a valid custody modification action. The father’s first contempt petition was entitled

9
“Petition for Contempt and Modification of Custody,” but at no point did he seek a

change of custody, nor did he file a separate modification action. In addition, the

father has not asserted in an appellate brief or otherwise demonstrated that the mother

waived her right to assert the impropriety of the inclusion of a change-in-custody

request in a contempt proceeding. Given that a separate and independent action to

modify custody was not filed as required by OCGA § 19-9-23 (a), and the father has

not demonstrated that the mother waived her rights under OCGA § 19-9-23, the trial

court lacked authority to modify the divorce decree in this contempt action.

2. In light of our holding in Division 1, we need not address the mother’s

contention that the trial court abused its discretion by ordering her to cease homeschooling the child, when home-schooling “is an accepted, legal form of education in

the State of Georgia.”

Judgment reversed. Doyle, P. J., concurs. Dillard, C. J., concurs fully and

specially.
A18A0910. BORGERS v. BORGERS.

DILLARD, Chief Judge, concurring fully and specially.

The liberty interest of parents to direct the upbringing, education, and care of

their children is the most ancient of the fundamental rights we hold as a people,

1 and

is “deeply embedded in our law.”

2 This cherished right derives from the natural order,3

preexists government, and may not be interfered with by the State except in the most

compelling circumstances. And while I agree with the majority that the trial court

lacked the authority to alter the parties’ custody agreement in this contempt action, I

write separately to express my serious concerns with the court’s decision to summarily

substitute its judgment regarding the child’s education for the mother’s without

identifying evidence of the compelling circumstances necessary to interfere with her

constitutional parental rights. In doing so, the trial court failed to give sufficient

1

I concur fully in the majority’s thoughtful and well-reasoned opinion. As a

result, it may be cited as binding precedent. See Court of Appeals Rule 33.2 (a) (1).

2 Patten v. Ardis, 304 Ga. 140, 141 (816 SE2d 633) (2018).

3

Id. at 141 (“More than a hundred years ago, this Court identified [the right of

parents to the care, custody, and control of their children] as among the inherent rights

that are derived from the law of nature.”); see Sloan v. Jones, 130 Ga. 836, 847 (62 SE

21) (1908), superceded by statute on other grounds as recognized by Proctor v.

Proctor, 164 Ga. 721 (139 SE 531) (1927); Moore v. Dozier, 128 Ga. 90, 93-94 (57

SE 110) (1907); Rives v. Sneed, 25 Ga. 612, 622 (1858).

2
consideration to the federal and Georgia constitutions, both of which afford significant

protection of a parent’s right to the care, custody, and control of his or her

child—which undoubtedly includes the right to make educational decisions. Our trial

courts must be mindful in every case involving parental rights that, regardless of any

perceived authority given to them by a state statute to interfere with a natural parent’s

custodial relationship with his or her child, such authority is only authorized if it

comports with the long-standing, fundamental principle that “[p]arents have a

constitutional right under the United States and Georgia Constitutions to the care and

custody of their children.”

4

In this respect, the Supreme Court of the United States has

4 Clark v. Wade, 273 Ga. 587, 596 (IV) (544 SE2d 99) (2001) (plurality

opinion); see Meyer v. Nebraska, 262 U.S. 390, 399 (43 SCt 625, 67 LEd 1042)

(1923) (noting that the “liberty interest guaranteed by the Fourteenth Amendment [to

the United States Constitution] includes freedom . . . to engage in any of the common

occupations of life, to acquire useful knowledge, to marry, establish a home[,] and

bring up children, to worship God according to the dictates of his own conscience,

and generally to enjoy those privileges long recognized at common law as essential to

the orderly pursuit of happiness by free men” (emphasis supplied)); see also Prince v.

Massachusetts, 321 U. S. 158, 166 (64 SCt 438, 88 LEd 645) (1944) (noting that there is a “private

realm of family life which the state cannot enter”); Pierce v. Soc’y of the Sisters of the Holy

Names of Jesus & Mary, 268 U.S. 510, 535 (45 SCt 571, 69 LEd 1070) (1925) (“The

child is not the mere creature of the state; those who nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare himfor additional obligations.”); In the Interest of

M. F., 298 Ga. 138, 144-45 (2)(780 SE2d 291)(2015)(“The presumptionthat childrenordinarilybelong

inthe care and custody oftheir parents is not merely a presumption of the statutoryand commonlaw, but

ithasrootsinthe fundamentalconstitutionalrights ofparents. The Constitutionsecuresthe fundamentalright

of parents to direct the upbringing oftheir children, and it protects a private realm of family life which the

3
acknowledged that “[t]he liberty interest . . . of parents in the care, custody, and

control of their children—is perhaps the oldest of the fundamental liberty interests . .

. .”

5 And while a parent’s right to raise his or her children without state interference is

state cannot enter without compelling justification.” (punctuation and citation omitted)); Brooks v.

Park erson, 265 Ga. 189, 191 (2) (a) (454 SE2d 769) (1995) (“The U.S. Supreme Court has long

recognized a constitutionally protected interest of parents to raise their children without undue state

interference.”); see generally U.S. Const. amend. IX (“The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained by the people.”)(emphasis supplied);

U.S. Const. amend. XIV, § 1 (“. . . No State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States . . . .”); Ga. Const. Art. 1, § 1, XXIX (“The

enumeration of rights herein contained as part of this Constitution shall not be construed to deny to the

people any inherent rights which they may have hitherto enjoyed.”) (emphasis supplied). 

5 Troxel v. Granville, 530 U.S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49) (2000)

(plurality opinion); see id. at 68 (II) (noting the constitutional presumption that “fit

parents act in the best interests of their children”); Parham v. J. R., 442 U.S. 584, 602

(III) (b) (99 SCt 2493, 61 LE2d 101) (1979) (noting that the federal constitution’s

“concept of the family rests on a presumption that parents possess what a child lacks

in maturity, experience, and capacity for judgment required for making life’s difficult

decisions,” and that “natural bonds of affection lead parents to act in the best interest

of their children”); see also 2 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES

WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL

GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA 446

(Birch & Small 1803) (“The duty of parents to provide for the maintenance of their

children is a principle of natural law.”); 2 JAMES KENT, COMMENTARIES ON AMERICAN

LAW 169 (O. Halsted 1827) (noting that “[t]he rights of parents result for their duties

[to their children],” and “the law has given them such authority”); JOHN LOCKE,

SECOND TREATISE OF GOVERNMENT, Ch. 6, § 71 (Hackett Publishing Co., Inc. 1980,

originally published in 1690) (“This shews the reason how it comes to pass, that

parents in societies, where they themselves are subjects, retain a power over their

children, and have as much right to their subjection, as those who are in the state of

nature.”) (emphasis supplied).

4
largely expressed as a “liberty” interest, the Supreme Court of the United States has

also noted that this right derives from “privacy rights” inherent in the text, structure,

and history of the federal constitution.

6

In Georgia, a parent’s natural right to familial relations is also recognized “under

our state constitutional protections of liberty and privacy rights.”

7

Indeed, Georgia

courts have repeatedly recognized that “the constitutional right to raise one’s children

is a fiercely guarded right in our society and law, and a right that should be infringed

upon only under the most compelling circumstances.”

8

In fact, according to our

6 See Brooks, 265 Ga. at 191-92 (2) (a); see also Clark, 273 Ga. at 606

(Thompson, J., dissenting) (“Under the Due Process Clause of the Fourteenth

Amendment, and our state constitution, parents have a fundamental liberty interest and

privacy right in raising their children without undue state influence.” (emphasis

supplied)); see, e. g., Prince, 321 U.S. at 165 (recognizing a parent’s authority over

rearing his or her children and the right of a parent to control over and training of her

child as “sacred private interests” that are “basic in a democracy”).

7 Brooks, 265 Ga. at 192 (2) (a). Cf. Powell v. State, 270 Ga. 327, 330-31 (2)

(510 SE2d 18) (1998) (“[T]he ‘right to be let alone’ guaranteed by the Georgia

Constitution is far more extensive tha[n] the right of privacy protected by the U.S.

Constitution, which protects only those matters ‘deeply rooted in this Nation’s history

and tradition’ or which are ‘implicit in the concept of ordered liberty.’”).

8

In the Interest of D. M., 339 Ga. App. 46, 52 (793 SE2d 422) (2016)

(punctuation omitted); accord In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d

299) (1978); In the Interest of S. O. C., 332 Ga. App. 738, 743 (774 SE2d 785)

(2015); In the Interest of J. V. J., 329 Ga. App. 421, 425 (765 SE2d 389) (2014); In

the Interest of C. J. V., 323 Ga. App. 283, 283 (746 SE2d 783) (2013); In the Interest

5
Supreme Court, “there can scarcely be imagined a more fundamental and fiercely

guarded right than the right of a natural parent to [his or her] offspring.”

9 And the

fundamental liberty interest of natural parents in “the care, custody, and management

of their child does not evaporate simply because they have not been model parents.

. . .”

10 To be sure, parental rights are not absolute. But when this fundamental liberty

interest is at stake, the court must “give full, fair, and thoughtful consideration to the

serious matter at hand.”

11

Suffice it to say, a parent’s right to the care, custody, and control of one’s child

includes a constitutionally protected right to make decisions regarding the child’s

education—including the choice to homeschool.

12

Indeed, in addition to the Supreme

of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006).

9

In the Interest of M. F., 298 Ga. at 145 (2) (punctuation omitted); accord

Floyd v. Gibson, 337 Ga. App. 474, 479 (1) (788 SE2d 84) (2016).

10

In the Interest of M. F., 298 Ga. at 145 (2); accord Santosky v. Kramer, 455

U.S. 745, 753 (II) (102 SCt 1388, 71 LE2d 599) (1982); In the Interest of S. O. C.,

332 Ga. App. at 746-47 (3).

11 Floyd, 337 Ga. App. at 479 (1); accord In the Interest of C. H., 343 Ga.

App. 1, 15 (805 SE2d 637) (2017) (Dillard, C. J., concurring fully and specially)

(Certiorari review granted by the Supreme Court of Georgia on June 18, 2018. See

S18C0322.)

12 See Wisconsin v. Yoder, 406 U.S. 205, 231 (IV) (92 SCt 1526, 32 LE2d 15)

(1972) (recognizing “the traditional concepts of parental control over the religious

6
Court of the United States’s landmark decisions in Meyer, Pierce, and Yoder,

13

the

fundamental right of a parent to homeschool his or her child is also supported by

Washington v. Glucksberg,

14 which held that the federal Constitution “specially

upbringing and education of their minor children recognized in [the United States

Supreme Court’s] past decisions”); Pierce, 268 U.S. at 534-35 (acknowledging “the liberty

ofparentsand guardiansto direct the upbringingand educationofchildrenundertheir control[,]”and noting

that “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable

relation to some purpose within the competency ofthe state”); Meyer, 262 U.S. at 400 (“Corresponding

to the [constitutional] right of control, it is the natural duty of the parent to give his children education

suitable to their station in life.”); Clark, 273 Ga. at 593-94 (III) (“[P]arents have the right to establish a

home, direct the upbringingoftheir children, and control their children’s education, and the state may not

sever the rights of parents in their natural child in a neglect proceeding unless it proves by clear and

convincing evidence that the parents are unfit to raise their children.”); In the Interest of R. B.,___ Ga.

App. ___, ___ (816 SE2d 706)(2018)(Dillard, C. J. concurringspecially)(“The libertyinterest ofparents

to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights

we hold as a people. This most cherished right derives from the natural order, preexists government, and

may not be interfered with by the State except in the most compelling circumstances.”); see also People

v. DeJonge, 442 Mich. 266, ___ (1993) (citing Yoder in concluding that “a teacher certification

requirement is anunconstitutionalviolationofthe Free Exercise Clause ofthe First Amendment as applied

to” religious homeschooling families); Delconte v. State, 329 SE2d 636, 646 (N.C. 1985) (“[T]he

principlesenunciatedinYoder and Pierce raise serious questions asto the constitutionalityofstatuteswhich

prohibit altogether home instruction.”); Mazanec v. N. Judson-San Pierre Sch. Corp., 614 FSupp 1152,

1160 (N.D. Ind. 1985), aff’d, 798 F2d 230 (7th Cir. 1986) (citing Pierce and Yoder in holding that

parents have “a constitutional right to educate [their] children in an educationally proper home

environment,” and also expressing doubts as to whether “requirements of a formally licensed or certified

teacher. . . would nowpass constitutionalmuster.”). Cf. OCGA § 20-2-690 (a)(“Thissubpartrecognizes

the existence of public schools, private schools, and home study programs as educational entities.”)

(emphasis supplied); OCGA § 20-2-690.1 (a) (“Mandatory attendance in public school, private school,

or home school program shall be required for childrenbetweentheir sixth and sixteenth birthdays . . . .”

(emphasissupplied)); OCGA § 1-4-14 (“The first week in Februaryofeachyearis declared to be ‘Home

Education Week’ in Georgia.”).

13 See supra notes 4, 12 & accompanying text.

14 521 U.S. 702 (117 SCt 2258, 138 LE2d 772) (1997).

7
protects those fundamental rights and liberties which are, objectively, deeply rooted

in this Nation’s history and tradition.”

15 As one legal scholar has observed,

homeschooling was “not only legal at the very early stages of our ‘history and

tradition,’ but was also the predominate form of education.”

16 A parent’s fundamental

right to homeschool his or her children was also, significantly, “recognized and

unchallenged when the Constitution was drafted and when the Fourteenth Amendment

was passed.”

17 And while the Supreme Court of Georgia has yet to explicitly declare

that a parent’s right to care, custody, and control of his or her children includes the

right to homeschool them, it is difficult to see how the Court’s reasoning in Patten v.

Ardis—which is steeped in this state’s constitutional and jurisprudential

history

18—would not apply with equal force and extend to such a fundamental parental

15

Id. at 720-21 (II).

16 Billy Gage Raley, “Safe at Home: Establishing A Fundamental Right to

Homeschooling,” 2017 B.Y.U. Educ. & L.J. 59, 73 (2017); see also id. at 71-

(chronicling widespread presence of homeschooling in Ancient Greece, Ancient

Rome, Medieval England, and Colonial America).

17

Id. at 78.

18 See generally Patten, 304 Ga. at 141-44 (2). Interestingly, our Supreme Court

rightly recognized in Patten that it had “been less than precise about the particular

provisions of our state constitution that guarantee the right of parents to the care,

custody, and control of their children,” Id. at 143 (2) n.9, explaining that while the Due

Process Clause of the Georgia Constitution (Ga. Const. Art. I, § I, ¶ I) has been

8
duty.

19 There is little question, then, that parents have a fundamental right under the

United States and Georgia Constitutions to homeschool their children.

Nevertheless, here, in addition to disregarding the plain terms of the current

custody agreement, the trial court appears to have given little, if any, consideration of

the mother’s constitutionally protected liberty interest in deciding to homeschool her

child. Indeed, without even referencing the significant liberty interests at stake, the

court questioned and undermined the mother’s choices regarding her child’s

education, ordering her to enroll the child in the Montessori school to “ensure the child

pointed to as one source, “[i]nsofar as the right was already regarded as inherent and

fundamental by the late part of the Nineteenth Century, the Inherent Rights

Clause—which appeared in the Constitution of 1877 and has been carried forward into

every Constitution since—may well constitute another source of the guarantee [Ga.

Const. Art. I, § I, ¶ XXIX].” Id.

19 As one renowned domestic relations treatise explains, “[t]hree leading duties

of parents . . . are recognized at common law; first, to protect; second, to educate;

third, to maintain them.” J. Schouler, A TREATISE ON THE LAW OF DOMESTIC

RELATIONS § 233 (4th ed. 1889) (emphasis in original removed and emphasis

supplied); id. at § 235 (“The second duty of parents is that of education; a duty which

Blackstone pronounces to be far the greatest of all these in importance.”); id. at § 243

(“The rights of parents result from their duties . . . As they are bound to maintain and

educate, the law has given them certain authority over their children, and in support of

that authority a right to the exercise of such discipline as may be requisite for the

discharge of their important trust.”).

9
is not ‘homeschooled’” based on its “own beliefs as to the child’s best interest[.]”

20

And while the trial court may be right that it would be more “convenient” for the child

to attend the Montessori school because the mother works there, a parent’s

constitutional right to make educational choices for his or her child is not limited to

those a judge (or any other state actor) deems to be convenient or wise. Thus, even

if the trial court had been authorized to modify the parents’ custody agreement (which

it was not), it did not reference any evidence of the compelling circumstances

necessary to substitute its own preferences as to the child’s education for the mother’s

decision to homeschool her child.

21 And when state actors engage in this sort of

Orwellian policymaking disguised as judging, is it any wonder that so many citizens

feel as if the government does not speak for them or respect the private realm of family

life.

20

(Emphasis supplied).

21 See supra note 6 & accompanying text.

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In sum, I take this opportunity, yet again,

22

to remind our trial courts that, in

making any decision or taking any action that interferes with a parent-child relationship,

our state statutes are subordinate to and must be construed in light of the fundamental

rights recognized by the federal and Georgia constitutions—which both include a

parent’s fundamental right to homeschool a child. As this Court has rightly recognized,

“[t]he constitutional right of familial relations is not provided by government; it

preexists government.”

23

Indeed, this “cherished and sacrosanct right is not a gift from

the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.”

24 Thus, regardless

of a court’s personal feelings or perception of a parent’s fitness to care for or retain

22 See, e.g., In Interest of R. B., ___ Ga. App. at ___ (Dillard, C. J., concurring

fully and specially); In Interest of R. S. T., 345 Ga. App. 300, 314-21 (812 SE2d 614)

(2018) (Dillard, C. J., concurring fully and specially); In the Interest of C. H., 343 Ga.

App. at 13-19 (Dillard, C. J., concurring fully and specially).

23

In Interest of E. G. L. B., 342 Ga. App. at 848; accord In the Interest of C.

H., 343 Ga. App. at 18 (Dillard, C. J., concurring fully and specially); see In Interest

of R. S. T., 345 Ga. App. 300, 315-16 (Dillard, C. J., concurring fully and specially)

(“The liberty interest parents have in familialrelations with their children is a natural-law

right that has been enshrined in our positive law. It is a right that preexists government

and one that we retain as a people separate and apart from any statute or constitution.”

(footnotes and punctuation omitted)).

24

In Interest of E. G. L. B., 342 Ga. App. at 848 (punctuation omitted); accord

In the Interest of C. H., 343 Ga. App. at 18 (Dillard, C. J., concurring fully and

specially).

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custody of his or her child, careful consideration of these bedrock constitutional

principles and safeguards must remain central to each case without exception. And

when this fails to occur, we will not hesitate to remind our trial courts of the solemn

obligation they have to safeguard the parental rights of all Georgians.

12